78 Hawai'i 455, State v. Pattioay

• Decision Date: 16 May 1995
• Docket Number: No. 17393,17393
• Citation: 896 P.2d 911
• Parties: 78 Hawai'i 455, 63 USLW 2788 STATE of Hawai'i, Plaintiff-Appellant, v. Michael PATTIOAY, Jay Rodrigues, Rosaline Rodrigues, and Dwayne D. Gould, also known as "Kimo," Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 911

896 P.2d 911

78 Hawai'i 455, 63 USLW 2788

STATE of Hawai'i, Plaintiff-Appellant, v. Michael PATTIOAY, Jay Rodrigues, Rosaline Rodrigues, and Dwayne D. Gould, also known as "Kimo," Defendants-Appellees.

No. 17393.

Supreme Court of Hawai'i.

May 16, 1995.

Donn Fudo, Deputy Pros. Atty., Honolulu, for plaintiff-appellant.

Theodore Y.H. Chinn, Deputy Public Defender, Honolulu, for defendant-appellee Michael Pattioay.

Ray Allen Findlay, Honolulu, for defendant-appellee Rosaline Rodrigues.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

KLEIN, Justice.

On October 31, 1991, Michael Pattioay, Jay Rodrigues (Jay R.), Rosaline Rodrigues (Rodrigues), and Dwayne Gould (collectively Defendants-Appellees) were charged with Promoting a Dangerous Drug in the Second Degree (Counts I-VII), in violation of Hawai'i Revised Statutes (HRS) § 712-1242(1)(c) (Supp.1992), Promoting a Dangerous Drug in the First Degree (Count VIII), in violation of HRS § 712-1242(1)(B)(ii) (Supp.1992), Promoting a Dangerous Drug in the Third Degree (Count IX), in violation of HRS § 712-1243 (Supp.1992), and Unlawful Use of Drug Paraphernalia (Count X), in violation of HRS § 329-43.5(a) (Supp.1992). Rodrigues was also charged in another criminal action with Promoting a Dangerous Drug in the Second Degree, HRS § 712-1242(1)(c) (Additional Count). The circuit court consolidated both actions and issued an order (Order) granting in part Rodrigues' motion to suppress, in which the other Defendants-Appellees had joined.

The prosecution filed a timely notice of appeal on September 1, 1993, arguing that the court committed reversible error in granting the motion to suppress by basing its decision on erroneous findings of fact and conclusions of law. For the reasons set forth below, we affirm.

I. BACKGROUND

At the hearing on their motion to suppress, the Defendants-Appellees called David Foster as a witness. Foster is a military police officer attached to the U.S. Army Criminal Investigation Department (Army CID). Foster testified that he was assigned as an undercover agent to a joint operation between the Army CID and the Wahiawa Crime Reduction Unit of the Honolulu Police Department (HPD). The Army CID had been involved previously in joint operations with the HPD using undercover operations to target suspected civilian drug dealers.

Foster further testified that he was given guidelines for "targeting" civilians in military investigations, which specify as follows: where a soldier, military dependant or Department of Defense (DOD) civilian has stated that drugs had been purchased from civilians, a sufficient military connection exists to justify controlled "off post" drug purchases, including surveillance of alleged civilian drug suppliers. Before taking such action, a form had to be prepared and forwarded to military headquarters for authorization. Once authorization was received, the Army CID called the HPD Crime Reduction Unit and planned an undercover operation targeting the civilians suspected of selling drugs to military personnel.

Foster estimated that over fifty percent of the undercover activities performed by the Army CID during his tenure were directed against civilian targets. Foster also testified that he personally worked as an undercover agent in more than twenty-five but less than fifty cases where civilians were targeted. According to Foster, whenever a targeted civilian was "off post," HPD was always involved.

The Army CID initiated the investigation in the instant case when the military obtained information about the purchase of drugs from the Defendants-Appellees by Tanya Slaten, a military dependent who was under investigation by the military police. Another Army CID agent subsequently "turned" Slaten into an informant sometime in February 1989. Foster participated in briefing sessions at Schofield Barracks on April 13, 1989 concerning a controlled drug purchase to be made that day at the Defendants-Appellees' civilian residence in Wahiawa. HPD Officer George Clark was also present at these briefings.

Following the briefing, Foster and Slaten drove to the Wahiawa house where he and Slaten were invited inside. Foster was specifically asked to present identification. Rodrigues was present, but Foster purchased two packets of cocaine from Gould. The packets were later submitted to Foster's superiors and field tested by military personnel before being turned over to Clark.

On April 19, 1989, Foster (accompanied by a surveillance team made up of two other Army CID agents and Clark) returned to the Wahiawa house and purchased two more packets of cocaine from Pattioay. Before purchasing the cocaine, Foster showed Pattioay his military identification card as Pattioay had instructed.

On May 10, 1989, Foster went to the Wahiawa house once again, and Gould sold him two more packets of cocaine. After this purchase, Foster submitted the drugs to Clark. Then, on May 31, 1989, Foster bought two additional packets of cocaine from Rodrigues. On June 28, 1989, Foster attempted to make another purchase at the Wahiawa home but learned that the Defendants-Appellees had moved to another location. At this new location, Foster again purchased drugs from Rodrigues and Gould. As in all previous buys, Foster was armed and the surveillance team provided protection for him. The drugs were once again submitted to Clark's custody.

Finally, Rodrigues sold Foster cocaine on August 15, 1990 under similar conditions. At this sale, however, the surveillance team was made up of three Army CID agents plus three HPD officers, including Clark. Sometime after this sale, HPD searched the house and arrested the Defendants-Appellees. Foster testified that he believed the search warrant prepared for the house from which the Defendants-Appellees sold the cocaine was based in part on the transaction of August 15, 1990. Military personnel neither prepared nor executed the search warrant nor participated in the arrests.

Clark testified that he has participated in over one hundred joint investigations with the Schofield Drug Suppression Team. In all these investigations, the military would initiate the cases on post and, if civilians were involved, contact HPD for "jurisdictional reasons." Clark's assignment was to "initiate cases, document them, ... and assist [the Army CID] in narcotics investigations" by providing back-up and surveillance. He would also obtain physical evidence from the undercover Army CID personnel and place the evidence with HPD for storage and subsequent civilian criminal prosecution. The Army CID did not assist Clark in completing the case; this was Clark's responsibility. Army CID neither assisted in the arrest nor the search of the Defendants-Appellees' residence.

Over the objections of Rodrigues's attorney, the circuit court allowed Army CID Special Agent Scott May to testify as to the general procedure followed in submitting requests to Army headquarters in Korea for its approval of off-post investigations by Army CID. Although May had no personal knowledge of this case, other than what he had read, the prosecution sought to introduce into evidence two Army CID documents concerning a request and approval for this joint civilian-military investigation. Despite continuous objections by counsel for one of the Defendants-Appellees, ¹ the court allowed May to testify concerning the two proffered documents, "as an example of what happens."

May testified that, in general, after receiving information about civilians selling significant amounts of drugs to military members, a request is sent to regional headquarters in Korea requesting authorization to proceed with an investigation. When the prosecution attempted to connect May's testimony to the proffered documents, the court sustained defense counsel's hearsay objections, but eventually overruled an objection based on a lack of foundation with respect to May's personal knowledge of the relevant events. Consequently, May testified that the request and approval procedure was followed in the instant case. The court then admitted the proffered evidence, but only "as proof of the operative facts, that ... requests were made for approval and approval was received ... to initiate the investigation or the undercover operation.... Whether or not the facts underlying approval were correct or not is not at issue." ² Defense counsel promptly reasserted the HRE Rule 106 objection, see supra note 1, arguing that approval was not properly granted under the appropriate military regulations, and suggesting that this could be shown through documents not included in the prosecution's incomplete proffer of evidence. Nevertheless, the court overruled the objection, stating that counsel could either: (1) submit a written motion for reconsideration identifying the additional documentation required; or (2) elicit the necessary information under cross-examination.

On cross-examination, May acknowledged that the documentary evidence allegedly showing "approval" by military command was not actual approval. He stated that "[t]he approval comes by voice" and that he did not have any personal knowledge that such approval was in fact given, only that the file indicated approval was provided in compliance with military regulations. See 32 C.F.R. §§ 213(a)(2) and (3). Defense counsel then made renewed objections to the prosecution's evidence and also moved to strike Foster's testimony concerning the approval process. The court denied the motion and indicated that it would take the matter under advisement.

After oral arguments, the court obviated a review of its preliminary evidentiary rulings by filing an order suppressing all evidence obtained by the military relating to the Additional Count, ³ and Counts IV through X. ⁴ Although no member of the military was involved in the search that led to the recovery of evidence at issue in Counts IX and X, the evidence was nonetheless suppressed...